Monday, July 2, 2012

Supreme Drama ~ Roberts Vs. Kennedy

Yesterday CBS News dropped a stunning bombshell when they published insider information about the machinations of the ACA Health Care ruling by the Supreme Court. The reporter is Jan Crawford, and everyone wonders who her sources are, whether clerks or the justices themselves. She says she had two sources - standard in most news stories. Maybe she just had some non-denial denials, as Woodward and Bernstein had while getting two sources in the Watergate case?

She reports that Chief Justice Roberts had originally sided with the conservatives to strike down the health care mandate, but Roberts didn't agree with Scalia and the others that they should strike down all of Obamacare. So he wrote his own opinion allowing the mandate as a tax, and the liberal justices got on board with it.

Ironically, Justice Anthony Kennedy - often thought of as the "moderate swing vote" - was the one determined to bring Chief Roberts back to the fold, badgering him for weeks to flip again and strike down Obama's plan, described in the article as a "relentless" effort. In the end, the conservatives put out an "unsigned dissent" ignoring Justice Roberts' ruling - rather vindictive.

Therefore, the shunning of Roberts as a traitor began long before the public knew of the verdict. The fury of Republicans on Twitter and everywhere else must have come as no surprise after all. No wonder Roberts told reporters that he was planning to go to Malta to teach a class: “Malta, as you know, is an impregnable island fortress,” he told reporters. “It seemed like a good idea.”

Roberts focused the majority opinion on a much more difficult legal proposition: The tax power. But Roberts also would limit Congress' authority in future cases under the commerce power.

Roberts then engaged in his own lobbying effort - trying to persuade at least Justice Kennedy to join his decision so the Court would appear more united in the case. There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as "arm-twisting."

Even in Roberts' opinion, which was circulated among the justices in early June, there are phrases that appear tailored to get Kennedy's vote. Roberts even used some of the same language that Kennedy used during oral arguments.

~~~snip~~~

The fact that the joint dissent doesn't mention Roberts' majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

The language in the dissent was sweeping, arguing the court was overreaching in the name of restraint and ignoring key structural protections in the Constitution. There are clear elements of Scalia - and then, there is Justice Kennedy.

"The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril," the dissent said. "Today's decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it."